Lawyers: Give automatic citizenship to stateless children adopted by Malaysians

KUALA LUMPUR, March 23 ― Putrajaya should automatically grant citizenship to stateless children born in Malaysia once they are adopted by Malaysian parents, lawyers have said.

Lawyer Raymond Mah asserted the National Registration Department (NRD) has wrongly applied the law with its current practice of only granting citizenship to adopted children in two scenarios: if the biological parents are a married Malaysian couple, or if the biological mother is Malaysian but gave birth without being married.

“This practice is without any legal basis and has unlawfully rendered stateless many adopted children whose biological mother is unknown or is non-Malaysian,” he told Malay Mail Online when contacted.

In Malaysia, a child who is born here out of wedlock to a Malaysian father and foreigner is considered to take on the biological mother’s nationality. The Court of Appeal, in a case last Thursday, said this meant the child’s statelessness was unproven and prevented him from being recognised as a Malaysian citizen.

Mah argued, however, that the NRD should instead use the nationality of the adoptive Malaysian parents when deciding if citizenship should be granted for a stateless child who has been adopted.

“The NRD’s reference to the citizenship of an adopted child’s biological parent is wrong and irrelevant, as the child’s post-adoption birth certificate has reference only to the adoptive parents. Further, the biological mother no longer plays any part in the child’s life and it is not logical for an adoptive child to follow his/her biological mother’s citizenship,” he said.

For a Malaysia-born child lawfully adopted by Malaysian parents, Mah argued that the child should be entitled to citizenship under Section 1(a) of Part II of the Federal Constitution’s Second Schedule — which requires at least one of the parents to be a Malaysian citizen.

This is because the adopted child’s lawful “parents” would be the adoptive Malaysian parents, owing to the Adoption Act 1952’s Sections 25A(5) and (6) where the post-adoption birth certificate — which names the adoptive parents as the child’s “parents” — is to be used to determine who the parents are.

“The pre-adoption birth certificate is no longer valid and further reference cannot be made to it, even for the purpose of determining the Child’s citizenship. Again, reliance on sections 25A(5) and (6) of the Adoption Act 1952 is often overlooked,” he said.

“In order to avoid prejudice to stateless and adopted children arising from the misapplication of the present laws, legislation should also expressly provide that an adopted child is entitled to Malaysian citizenship if the adoptive parents are Malaysian citizens,” he added.

Best interests of the child

Family lawyer Goh Siu Lin supported the automatic citizenships for stateless children adopted by Malaysian parents, and noted the government appeared in recent times to not even give them the permanent residencies that she said was the norm before.

“I would urge the government to revisit this position as this is contrary to intent of the Adoption Act 1952 which by Section 9(1) provides that an adopted child is to be treated as though born to the adoptive parents in ‘lawful wedlock’ and Section 25A which provides that the birth certificate of the adopted child should not contain the word ‘adopted’ and by extension, the adopted child should have the same citizenship status as his adoptive parents,” she said.

She also said the Malaysian government and the Malaysian courts are required by the United Nations’ Convention of the Rights of the Child’s (CRC) Article 3 to to place the “best interests of the child” as the “primary consideration” when making decisions and interpreting laws.

“Malaysia should give effect to its international obligations under the CRC and remove its reservation to Article 7 of the CRC and to put in place enabling laws to give effect to the right of a child to acquire a nationality, currently denied to the many stateless children in Malaysia,” she said.

Among other things, Article 7 states a child shall have the right to acquire a nationality, with countries to ensure the implementation of such rights in accordance with their national law and international obligations, especially when the child would otherwise become stateless.

Malaysia ratifed the CRC in 1995, but said it would only apply five of the international treaty’s provisions — including Article 7 — if they conform with the Federal Constitution, national laws and national policies.

Lawyer Simon Siah, who noted most stateless children in Malaysia are denied citizenship due to being born out of wedlock to a non-Malaysian mother, similarly proposed Malaysia ratify the CRC’s Article 7.

“With this, all the children should be given a citizenship as long as one of their parent is Malaysian. Adopted children must also be given citizenship and the State must always keep in mind the priority is the children,” he said.

Lawyer Annou Xavier said Malaysia must have the political will to give effect to the CRC since it ratified the international convention, also highlighting the importance of the convention’s Articles 7 and 3 that touch on the right to nationality and the best interests of the child to be given primary consideration.

“What are primary interests of children? A child must have a place of residence or a country which he can reside as home,” he said, also backing the granting of citizenship to those adopted by Malaysians.

Annou said there should be an amendment of the Federal Constitution provision that currently said a child’s citizenship followed the biological mother’s citizenship status, saying a child should be recognised as citizen as long as either parent is Malaysian. The NRD website names this provision as Section 17 of Part III of the Federal Constitution’s Second Schedule.

Human rights lawyer Honey Tan cited the Universal Declaration of Human Rights’ Article 15, which stated that every person has a right to a nationality.

“Every person who is born in Malaysia should have citizenship. If either one of the parents of the child is Malaysian, that child should also be a citizen automatically,” she told Malay Mail Online when contacted.

That overlooked ‘one-year’ clause

In a classic example of Malaysia-born illegitimate children being denied citizenship despite having a Malaysian biological father, a six-year-old boy last Thursday lost his bid to be recognised as truly stateless, even when the Thai woman whose nationality he was deemed to have taken on was untraceable.

Among other things, the boy had sought for a court order to be declared a citizen via the Federal Constitution’s Article 14(1)(b) and section 1(e) of Part II of the Constitution’s Second Schedule, which states that every person born in Malaysia and who are not born a citizen of any country is a Malaysian citizen by operation of law.

But Mah pointed out that the constitutional provision of section 1(e) should be read together with Section 2(3) of the same Schedule, which he said makes it clear that Malaysia-born children who do not obtain citizenship from any other country within a year of their birth is a Malaysian citizen.

“Unfortunately, the importance of Section 2(3) in interpreting Section 1(e) of Second Schedule of the Federal Constitution is often overlooked,” he said.

“In respect of stateless children who have not been lawfully adopted, the NRD should recognise them as citizens provided that it is proven that they were born in Malaysia and that there is no evidence that they in fact obtained foreign citizenship within a year after their birth in Malaysia,” he also said.

The NRD should also be prepared to accept sworn statements and other evidence from the child and the relatives on the child’s birth in Malaysia and whether foreign citizenship was indeed obtained within a year after birth, with the burden being on the NRD to disprove such claims, he said.